The theory has long established it: a democracy presupposes a rule of law, that is, the possibility for citizens to rely on the equal application of a democratically voted law to all citizens, regardless of their social status or circumstances. This principle prohibits the executive branch from acting against the law and the legislative branch from acting against the Constitution, except to reform them by following the procedures provided for in the Constitution. It also implies the obligation, for all, to comply with what the law imposes, under penalty of being sought by a police, itself placed under the control of a justice which can, at the end of the procedure, condemn any resident in the country, whatever his rank or his fortune, a fine or jail sentence, without the judges being pressured by the executive, the legislature, or money or any other form of influence or intimidation. In recent decades, countless principles, charters, treaties or international regulations have been added to national law, which also have, in principle, the force of law, with a force superior to national law.
These principles are obviously not applied in dictatorships, where justice is only a masquerade at the orders of an arbitrary power, especially anxious to crush all those who can threaten it. This is the case today especially in Russia, China, Iran and many other openly totalitarian countries. Or in other, seemingly democracies, where justice is, like other forms of power, plagued by corruption.
This is also increasingly the case in many democratic countries, where the place of justice is threatened. So, for example, in the United States, where the Republican Party, and its candidate in the next presidential election spend their time denouncing justice as an instrument of the Democratic Party, (which it is not), threatening to destroy it if Donald Trump, himself besieged by legal proceedings, returns to power in a few months. In Mexico, the current president, and the favorite in his succession, his creature, announce their intention to elect all the judges, which would amount to making her choose, by the party in power, among its militants. In Israel, the current Prime Minister is trying to do everything he can to reduce the power of the Supreme Court, which struck down a key provision of his proposed judicial reform, aimed at removing the right of the judiciary to rule on “reasonableness”. decisions of the executive or Parliament. By doing so, this Prime Minister seeks to cling to power, not to go to prison for corruption, and to transform the country, whose founders were laypeople, into a theocratic dictatorship. In Poland, a reform of the previous Government, now overthrown by voters, aimed to give the possibility to the disciplinary chamber of the Supreme Court, composed largely of followers of the party then in power, “to authorize criminal proceedings against [the judges] or their arrest”.
In France, we see the same threat, with the very violent criticism of the extreme right against «the government of judges», about, in particular, one of its flagship proposals, the «national preference» in housing, health, education, and access to all public services. The president of the Constitutional Council having very recently recalled that such a «national preference» would be contrary to the spirit and the letter of the Constitution, the leaders of this party have taken up their antiphon, Arguing that such a preference already exists in the public service, whose access is reserved for French citizens, and denouncing a justice subject to the powerful, which should be swept away in 2027, to allow them to apply what «all citizens demand» Forgetting that “national preference” would imply constitutional reform passed in identical terms, by both chambers, including the Senate, which cannot, mathematically, at least in theory, for a very long time to be acquired to the theses of the extreme right.
Defending the independence of judges is therefore the condition for the survival of our democracies. This will involve being very demanding about their competence and independence, and providing them with the means of both.
j@attali.com
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